BVA9511765
DOCKET NO. 93-16 351 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder, (PTSD).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1964 to
February 1968.
This matter comes before the Board of Veterans' Appeals (the
Board) from a December 1992 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO)
which denied the veteran’s claim for entitlement to service
connection for PTSD.
REMAND
The threshold question in this case is whether the claim is
well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded
claim is a plausible claim, one which is meritorious on its
own or capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990). There must be more than an
allegation; the claim must be accompanied by supporting
evidence that justifies a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992). In order for the veteran to be
granted service connection, there must be evidence of both a
service connected disease or injury and a present disability
which is attributable to such disease or injury, otherwise,
the claim is not well-grounded. Rabideau v. Derwinski, 2
Vet.App. 141, 143 (1992). The significance of presenting a
well grounded claim is that such a claim triggers the VA’s
chronological obligation to assist the claimant in the
developing facts pertinent to the claim. Where the claimant
fails to present a well grounded claim, there is no duty to
assist him on the part of the VA. 38 U.S.C.A. § 5107(a);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The United
States Court of Veterans Appeals has underscored that if the
VA volunteers assistance in developing facts pertinent to a
claim that is not well grounded, such action raises “grave
questions of due process . . . if there is apparent disparate
treatment between claimants” between those who have been
their initial burden of presenting a well grounded claim and
those who have not. Grivois v. Brown, 6 Vet.App. 136, 140
(1994). In other words, if the claimant does not present a
well grounded claim, the VA not only has no duty to assist,
but also it may not volunteer to assist in the development of
the claim.
Under 38 C.F.R. § 3.304(f), service connection for PTSD
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor. The Board finds that when this
regulation is read in light of Rabideau, a showing of current
disability on the facts of this case would mandate that the
record reflect a diagnosis of PTSD. See Zarycki v. Brown, 6
Vet.App. 91 (1993). The current record, however, does not
reflect that the appellant has ever been diagnosed as having
PTSD. A summary of VA hospitalization in July and August
1992 shows the appellant provided an account of having been
“MIA or AWOL for 10 days while in Vietnam after he was
separated from his unit.” The final diagnoses entered were
no diagnosis on Axis I and schizotypal personality disorder
on Axis II. In his July 1992 Statement in Support of Claim,
the veteran indicated that there was medical evidence from
the Social Security Administration “concerning PTSD.”
Although this statement is vague, the Board construes this to
mean that a diagnosis of PTSD may be shown by those records.
Therefore, to the extent that records with the Social
Security Administration reflect a diagnosis of PTSD, this
claim would be “capable of substantiation,” and thus well
grounded under Murphy.
In light of the above discussion, this case must be remanded
for certain specific actions by the RO. If, and only if, a
diagnosis of PTSD is shown by the records in possession of
the Social Security Administration, or the veteran submits
additional medical evidence reflecting a diagnosis of PTSD, a
duty to assist the veteran in the development of facts
pertinent to the claim will attach pursuant to 38 U.S.C.A.
§ 5107. The veteran has requested that a VA examination be
scheduled to establish a current diagnosis of PTSD. The
Board notes that VA examinations have been scheduled twice
previously both at the end of June 1992, and the end of
August 1992, and at both times the veteran failed to report
for the examinations. The first time the veteran alleged
that he did not receive timely notice of his appointment, and
it was subsequently rescheduled. The second time he stated
that he failed to report due to hospitalization. The veteran
was hospitalized from July 15 to August 3, 1992, but the
examination was scheduled for August 31, 1992. The veteran’s
representative stated that his confusion in this matter was
possibly associated with the veteran’s schizotypal
personality disorder. The Board is not satisfied that the
failure of the appellant to report for his VA examinations
constituted good cause under the provisions of 38 C.F.R.
§ 3.655, and as such a rescheduled examination is not
warranted. Moreover, records from the veteran’s
hospitalization for pychological testing which occurred
between the time of the VA examinations scheduled for July
and August 1992 reflected that “there has been no evidence of
major depression or PTSD,” and resulted in a diagnosis of
schizotypal personality disorder. More fundamentally, since
there was no diagnosis of PTSD of record, there was no duty
to assist the appellant and the RO erred in scheduling the
examinations in the first place.
The veteran has also reported that he is pursing medical
records from a family doctor, clinics in Austin, and the
Brachenridge (or Breckenridge) Hospital. However, no
specificity as to names, dates, locations, or the contents of
these records has been offered. As the duty to assist in the
development of facts pertinent to the claim does not attach
until a well grounded claim has been submitted, and none of
these records have been specifically cited as assisting in
that regard, that is, by showing a diagnosis of PTSD,
evidentiary development including obtaining these records is
not warranted until it is determined that the claim is well
grounded, and the appellant makes a showing that the records
would be relevant to the matter on appeal.
If a diagnosis of PTSD is shown by the records with the
Social Security Administration, or the veteran submits
medical records showing a diagnosis of PTSD, thereby making
the claim well grounded in that it is capable of
substantiation, then additional development of the claim is
necessary. The following discussion concerns the impact of
the case law from the Court on this additional development,
and is applicable only if a well grounded claim is submitted.
The veteran has described several combat incidents which are
alleged as PTSD stressors. If the claimed stressor is
related to combat, service department evidence that the
veteran engaged in combat or that the veteran was awarded the
Purple Heart, Combat Action Ribbon, or similar combat
citation will be accepted, in the absence of evidence to the
contrary, as conclusive evidence of the claimed inservice
stressor. In addition, VA's Manual M21-1 contains specific
procedures for VA to follow in evaluating claims for service
connection for PTSD. Manual M21-1, Part VI, Para 7.46(e),
(f) (Dec 21, 1992).
In Zarycki, the Court set forth procedures for VA to follow
in adjudicating claims for service connection for PTSD. The
Court concluded that the statutory and regulatory criteria
provided a framework in which the evidence necessary to
establish the occurrence of a recognizable stressor during
service to support a claim of entitlement to service
connection for PTSD will vary depending on whether or not the
veteran was "engaged in combat with the enemy." Where it is
determined, through recognized military citations, or other
supportive evidence, that the veteran was engaged in combat
with the enemy and the claimed stressors are related to such
combat, the veteran's lay testimony regarding claimed
stressors must be accepted as conclusive as to their actual
occurrence and no further development for corroborative
evidence will be required, provided that the veteran's
testimony is found to be credible and "consistent with the
circumstances, conditions, or hardships of such service." 38
U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Manual M21-1,
Part VI, Para. 7.46(e), (f). If VA determines that the
veteran did not engage in combat with the enemy, or that the
veteran did engage in combat with the enemy but the claimed
stressor is not related to such combat, the veteran's lay
testimony, by itself, will not be enough to establish the
occurrence of the alleged stressor, unless it is
substantiated by service records. Id.
The service medical records are negative for complaints,
treatment or diagnosis of any psychoneurotic disorder. The
discharge certificate shows that the veteran was a radio
mechanic. He received the National Defense Service Medal, a
Vietnam service Medal, and an Armed Forces Expeditionary
Medal for service in the Dominican Republic. On its face,
the current evidence of record does not establish that the
appellant "engaged in combat with the enemy." Although he
received several awards, these were not of the type related
to combat activities. As such, the veteran is not shown to
have received one of the citations specified in 38 C.F.R. §
3.304(f). As noted above, even if the record contained
evidence that the appellant "engaged in combat with the
enemy," his accounts would still have to be reviewed to
determine if they were credible and consistent with the
circumstances, conditions and hardships of his service.
The Court further held that even if it is found that there
was a stressful event in service, it must still be determined
whether that stressful event was of sufficient gravity to
support a diagnosis of PTSD as required in the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders, (Third Edition Revised 1987) (DSM-III-
R). The essential feature of PTSD is "a psychologically
distressing event that is outside the range of usual human
experience." The most common traumata involve a threat to
one's life, a threat to the lives of one's friends, or seeing
another person who has recently been seriously injured or
killed as the result of an accident or physical violence.
Zarycki at 98. The Court emphasized, however, that mere
service in a combat zone, in and of itself, was insufficient
to support a diagnosis of PTSD.
In West v. Brown, No. 92-890 (U.S. Vet. App. Aug. 8, 1994),
the Court elaborated on the analysis in Zarycki. In West,
the Court held that the sufficiency of the stressor is a
medical determination, and therefore adjudicators may not
render a determination on this point in the absence of
independent medical evidence. The Court also held in West
that a psychiatric examination for the purpose of
establishing the existence of post-traumatic stress disorder
was inadequate for rating purposes because the examiners
relied, in part, on events whose existence the Board had
rejected.
The veteran has alleged that several combat incidents were
PTSD stressors. He has reported in his September 1992
Statement in Support of Claim the following alleged events:
(1) an incident of electric shock on board ship resulting in
his blacking out; (2) a night fire fight at an air base at
Can To (it is not clear that the appellant claims he was
physically present for this event); (3) “skirmish attacks
experienced” over two months time in Mekong River duty (again
the statement is not entirely clear as to whether the
appellant participated in these events); (4) in February
1967 by direct order of an allegedly drunk officer, he was
abandoned and left at Vung Tau pier, sustained a head injury
and blacked out, then discovered twelve days had elapsed,
subsequently, he was classified as AWOL, threatened with
court martial, verbally traumatized, emotionally abused,
harassed, intimidated, and given bad assignments; (5) while
en route to Pearl Harbor from Subic Bay during a typhoon the
ship’s radar gave out, the veteran was selected to climb the
mast and change the radar unit integration tube with the
radar still turned on for about three minutes, receiving
“close if not a lethal dose” apparently of radiation; and (6)
in 1975, he states he was severely burned on both legs in a
mobile home fire resulting from attempted homicide by his ex-
spouse. Obviously, this last incident occurred when the
appellant was no longer in service.
Upon reviewing Zarycki and West, it appears that in
approaching a claim for service connection for post-traumatic
stress disorder, the question of the existence of an event
claimed as a recognizable stressor must be resolved by
adjudicatory personnel. If the adjudicators conclude that
the record establishes the existence of such an event claimed
as a stressor or stressors, then and only then, the case
should be referred for a medical examination to determine the
sufficiency of the stressor and as to whether the remaining
elements required to support the diagnosis of post- traumatic
stress disorder have been met. In such a referral, the
adjudicators should specify to the examiner(s) precisely what
stressors have been accepted as established by the record,
and the medical examiners must be instructed that only those
events may be considered in determining whether stressors to
which the appellant was exposed during service were of
sufficient severity as to have resulted in current
psychiatric symptoms. In other words, if the adjudicators
determine that the existence of an alleged stressor or
stressors in service is not established by the record, a
medical examination to determine whether post- traumatic
stress disorder due to service is present would be pointless.
Likewise, if the examiners render a diagnosis of post-
traumatic stress disorder that is not clearly based upon
stressors in service whose existence the adjudicators have
accepted, the examination would be inadequate for rating
purposes.
In light of all of the above considerations, the case is
REMANDED to the RO for the following actions:
1. The RO should request that the SSA
provide a copy of any decision awarding
benefits and a copy of the medical
records upon which the determination to
grant original or continuing entitlement
to such benefits was based. The
attention of the SSA should be
respectfully invited to 38 U.S.C.A. §
5106 (West 1991) and Murincsak v.
Derwinski, 2 Vet.App. 363 (1992).
2. The veteran should be invited to
provide medical evidence showing that a
diagnosis of PTSD has been made. In this
context, the Board again advises the
appellant that under the controlling law
and case law from the Court, there is no
obligation for the VA to provide him with
an examination prior to the submission of
such evidence.
Subsequent development should be undertaken if, and only if,
a diagnosis of PTSD is shown by the SSA records or the
veteran submits into the record medical evidence showing that
a diagnosis of PTSD has been made.
3. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding the stressors to which he
alleges he was exposed in service. These
incidents are briefly described on page 5
and 6 of this remand. The veteran should
be asked to provide specific details of
the claimed stressful events during
service, such as dates, places, detailed
descriptions of events, and identifying
information concerning any other
individuals involved in the events,
including their names, ranks, units of
assignment or any other identifying
detail. The veteran is advised that this
information is vitally necessary to
obtain supportive evidence of the
stressful events and that he must be as
specific as possible because without such
details an adequate search for verifying
information cannot be conducted.
4. With the additional information
obtained, the RO should review the file
and prepare a summary of all the claimed
stressors. This summary, and all
associated documents, should be sent to
the United States Army and Joint Services
Environmental Support Group, 7798 Cissna
Road, Springfield, Virginia 22150. They
should be requested to provide any
information which might corroborate the
veteran's alleged stressors.
5. Following the above, the RO must make
a specific determination, based upon the
complete record, with respect to whether
the appellant was exposed to an event or
events alleged as a stressor or stressors
in service, and if so, what was the
nature of the specific event or events
claimed as a stressor or stressors. In
rendering this determination, the
attention of the RO is directed to the
cases of Zarycki and West as discussed in
this remand. The Board points out again
that if the appellant did not engaged in
combat with the enemy, his accounts must
be supported by service records. The RO
must specifically render a finding as to
whether the appellant "engaged in combat
with the enemy." If the RO determines
that the record establishes the existence
of an alleged event claimed as a stressor
or stressors, the RO must specify what
was the nature of this event that has
been established by the record. In
reaching this determination, the RO
should address any credibility questions
raised by the record.
6. If, and only if, the RO determines
that the record establishes the existence
of an event or events alleged as a
stressor, then the RO should arrange for
the veteran to be accorded an examination
by a board of two VA psychiatrists, if
available, who have not previously
examined him to determine the diagnoses
of all psychiatric disorders that are
present. The claims folder and a copy of
this remand should be made available for
the examiners to review in conjunction
with their examination. The RO must
specify for the examiners the alleged
events claimed as the stressor or
stressors that it has determined are
established by the record and the
examiners must be instructed that only
those events may be considered for the
purpose of determining whether exposure
to a stressor in service has resulted in
current psychiatric symptoms, and whether
the diagnostic criteria to support the
diagnosis of PTSD have been satisfied.
The examination report should reflect
review of pertinent material in the
claims folder. The examiners should
integrate the previous psychiatric
findings and diagnoses with current
findings to obtain an accurate of the
nature of the veteran's psychiatric
status. If the diagnosis of post-
traumatic stress disorder is deemed
appropriate, the examiners should comment
whether the alleged events or events in
service were of the quality to constitute
a “stressor” for purposes of establishing
the presence of PTSD, and as to whether
there is a link between the current
symptomatology and one or more of the
inservice stressors found to be
established by the RO. The report of
examination should include the complete
rationale for all opinions expressed.
All necessary special studies or tests,
to include psychological testing and
evaluation, should be accomplished.
7. The RO should then review the record
and ensure that all the above actions
have been completed. When the RO is
satisfied that the record is complete and
the psychiatric examination is adequate
for rating purposes, the claim should be
re- adjudicated.
Thereafter, the case should be reviewed by the RO. If the
benefits sought are not granted, a supplemental statement of
the case should be issued to the appellant and his
representative and they should be provided an opportunity to
respond. Subsequently, the claims folder should be returned
to the Board for further review, if necessary. By this
action, the Board intimates no opinion legal or factual, as
to the ultimate disposition warranted as to this specific
issue.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).